However, he claims that, since the attempt statute requires an intentional state of mind, the jury instructions referring to either intentional or knowing attempted first degree murder were erroneous. See, i.e., People v. Kraft, 133 Ill. App.3d 294, 88 Ill. Dec. 546, 478 N.E.2d 1154 (1985). In State v. Galan, 134 Ariz. 590, 658 P.2d 243 (App. 1982), this court considered whether a defendant could commit attempted trafficking in stolen property. Under the trafficking statute, a person need only act recklessly to commit second degree trafficking in stolen property.
REFUSAL TO INSTRUCT ON ATTEMPTED MANSLAUGHTER AND ATTEMPTED NEGLIGENT HOMICIDE Relying on State v. Galan, 134 Ariz. 590, 658 P.2d 243 (App. 1982), appellant argues that the trial court erred in refusing to instruct the jury on the alleged offenses of attempted manslaughter and attempted negligent homicide. Although recognizing that Galan left open the question of whether the offenses of attempted reckless manslaughter or attempted negligent homicide were cognizable offenses in Arizona, appellant argues that the trial court should have adopted the reasoning set forth in that opinion.
Arizona's “current” criminal code became effective in 1978 and “replaced the various statutory and common law concepts of ‘mens rea' with four specifically defined culpable mental states”: intentionally, knowingly, recklessly, and with criminal negligence. State v. Galan, 134 Ariz. 590, 591, 658 P.2d 243, 244 (App. 1982). The Arizona Criminal Code “Commission and the Legislature generally relied on the Model Penal Code in drafting Arizona's revised criminal statutes.” State v. Bowsher, 225 Ariz. 586, 587-88, 242 P.3d 1055, 1056-57 (2010) (en banc).
Attempt to commit a reckless act is not cognizable under Arizona law because "there is no such criminal offense as an attempt to achieve an unintended result." State v. Adams , 155 Ariz. 117, 120, 745 P.2d 175, 178 (App. 1987) (citing State v. Galan , 134 Ariz. 590, 592, 658 P.2d 243, 245 (App. 1982) ). Thus, as the State now concedes, Reed pled guilty to an offense that is not a cognizable crime.
" However, as the state points out, "the offense of attempted trafficking in stolen property does not require such proof." See State v. DiGiulio, 172 Ariz. 156, 159, 835 P.2d 488, 491 (App. 1992) (defendant could be convicted of attempted trafficking if property "not stolen," but trafficking conviction "could not stand"); State v. Galan, 134 Ariz. 590, 593, 658 P.2d 243, 246 (App. 1982) (describing trafficking offense with which defendant charged as one "the legislature has simply chosen to define as an attempt when the property is not actually stolen"); cf. State v. Vitale, 23 Ariz. App. 37, 43-44, 530 P.2d 394, 400-01 (1975) (substantive crime of receiving stolen property "cannot be committed unless the property is actually stolen," but legal impossibility does not bar attempt). ¶9 Moran nevertheless points to his acquittal of the theft charge to argue that "the jury found . . . the structure was not stolen."
We further stated that, under the facts of that case, "the admissions of the parties coupled with the possession of $2,300 worth of auto parts by those not using them in their trade would support a finding that the parts were stolen." Id.¶14 The most obvious distinction between Reyes and this case is that trafficking in stolen property, the offense charged against Sherman, requires proof that the trafficked property is stolen, while attempted trafficking in stolen property does not. See State v. DiGiulio, 172 Ariz. 156, 159, 835 P.2d 488, 491 (App. 1992) (defendant could be convicted of attempted trafficking if property "not stolen," but trafficking conviction "could not stand"); State v. Galan, 134 Ariz. 590, 593, 658 P.2d 243, 246 (App. 1982) ("legislature has simply chosen to define" as attempted trafficking transfer of non-stolen property with "reckless state of mind as to [its] status"); cf. State v. Vitale, 23 Ariz. App. 37, 43-44, 530 P.2d 394, 400-01 (1975) (substantive crime of receiving stolen property "cannot be committed unless the property is actually stolen" but attempt requires only defendant's belief, albeit mistaken, in stolen nature of property received). ¶15 Moreover, we need not consider whether the facts here could give rise to an inference similar to that approved in Reyes, because in this case, as in State v. Rivera, 226 Ariz. 325, ¶ 4, 247 P.3d 560, 562-63 (App. 2011), both the indictments and the verdict forms specifically alleged that Sherman had trafficked in GPS units stolen from J.B., B.W., L.M., and G.E.
This is, of course, the reductio ad absurdum, as there can be no criminal offense that requires an attempt to accomplish an unintended result. See State v. Galan, 134 Ariz. 590, 593, 658 P.2d 243, 246 (App. 1982) ("`[T]here is no such criminal offense as an attempt to achieve an unintended result'") (quoting People v. Harris, 72 Ill.2d 16, 17 Ill.Dec. 838, 377 N.E.2d 28, 31 (1978)); State v. Adams, 155 Ariz. 117, 120, 745 P.2d 175, 178 (App. 1987) (similar). ¶ 13 Prior Arizona cases addressing related issues provide additional support for our conclusion.
We find no merit to this argument; the defense of impossibility no longer exists in Arizona. In State v. Galan, 134 Ariz. 590, 591, 658 P.2d 243, 244 (App. 1982), we pointed out that one of the purposes of our current criminal code is "to preclude the common law defense of impossibility, [which] . . . was accomplished by a redefinition of `attempt' . . . [under] A.R. S. § 13-1001. "After quoting relevant provisions of the statute, we held that it "thus imposes liability where the completed offense is rendered impossible for any reason.
We have relied on commentary to the Model Penal Code as persuasive authority in interpreting other provisions it has inspired. See, e.g., State v. Galan, 134 Ariz. 590, 592, 658 P.2d 243, 245 (App. 1982); State v. Womack, 174 Ariz. 108, 846 P.2d 609 (App. 1992). In pertinent part, the Model Penal Code provides:
At worst, he could be convicted of attempted trafficking. State v. Galan, 134 Ariz. 590, 658 P.2d 243 (App. 1982). Recovery of property by authorized persons, such as the police, strips it of its stolen character, and precludes conviction based upon its subsequent receipt or possession. Vitale, 23 Ariz. App. at 43, 530 P.2d at 390; United States v. Cawley, 255 F.2d 338, 340 (3d Cir. 1958).